These comments are tardy and probably too late to be considered. But, in
case they are not ...
Putting aside the debate on whether patents on software are bad --
contact the US Congress if you want to change the law; the W3C, though
it could have some influence, must exist under present patent laws and
realities -- I wanted to raise an issue that no one else appears to have
raised.
Given the reality that there exist a large and increasing number of
software-related patents, I think that it would be in the best interests
of everyone, or most everyone, that the patent policy mandate disclosure
by participants of potentially relevant patent claims. I propose
broadening the disclosure requirement without changing the compulsory
licensing provisions.
The present working draft requires only disclosure of "essential claims"
-- basically patent claims that would cover every conceivable
implementation. Participants in a working group should be obligated to
disclose any patent claims that are relevant to, or, alternatively, that
are reasonably likely to materially affect, the adoption and use of a
standard under consideration. Non-essential patent claims covering the
implementation most easily or likely to be adopted could conceivably
limit adoption of a recommendation or create traps for the unwary.
Clever, and even not so clever, participants could, in theory, carefully
craft patent claims that are not "essential" but still substantially
impede adoption of recommendation and/or lay traps for the unwary.
I therefore suggest that a working group be required consider
non-essential, but relevant (or at least material if "relevant" is
thought to be too broad) patent claims when formulating a
recommendation. The more information a working group has, the more
successful its recommendation will be. Once a working group knows about
a relevant (or material) patent claims, it may be able to take action to
reduce the impact of those patent claims on adoption of the
recommendation. It could, for example, explore ways to change scope or
thrust of a recommendation. It could even persuade the owner of those
claims to agree to license them on non-discriminatory terms acceptable
to the W3C.
However, I do not think that that owner of non-essential, but relevant
claims should be obligated to license them. I see no compelling reason
for the scope of the disclosure requirement to be commensurate with the
scope of the policy's compulsory license (to the extent there is one,
given the opt-out provision). Indeed, I suggest not extending the
compulsory license provision beyond non-essential claims for fear of
alienating those whose involvement in the recommendation will be
critical to its success.
Furthermore, a working group would be, under my suggestion, permitted to
develop a recommendation even if there are relevant or material patent
claims that may substantially limit the availability of acceptable
implementations. Its only obligation would be to access and weigh their
likely impact and warn those who may be implementing the standard of the
existence of these other claims.
A broader obligation of disclosure would benefit, I think, the majority
of interested parties, including open source and most commercial
software developers. These parties are not likely to have patents to
cross-license or bargain with or the necessary resources to evaluate
patents. Large commercial developers and those with direct commercial
interests in the subject matter of the working group are less likely to
benefit from it.
Broadening the disclosure requirement will likely increase the burden on
a working group. Some participants may view it is an an unacceptable
burden and trap for them. However, such participants would be better
served by disclosing any potentially relevant claims rather than taking
the chance that the claim that they though was not essential is found by
a court later on to have been, in fact, essential.
Also, some may feel it is better to hide one's head in the sand when it
comes to patents. This is not bad advice, as there is no point in going
to look for trouble. However , by more effectively dealing with patent
issues up front the W3C will be benefiting the public and reducing the
risk on those who implement the recommendations.
There are other, more "technical" problems I see in the working draft,
but I do not have time to address them. If I have time, I will try to
submit additional comments.
THESE COMMENTS ARE ENTIRELY PERSONAL. THEY MAY NOT (AND PROBABLY DO NOT)
REFLECT THE INTERESTS OR OPINIONS OF MY FIRM , MY CLIENTS OR MY FIRM'S
CLIENTS.